I’m not sure that your definition of what a Surrogate Motherhood contract happens to be mean what it means in the literature. I think the standard meaning of the term is about a woman being pregnent with a child that not hers genetically but that has another genetic mother.
The German paragraph you referenced has nothing to do with adoption or contracts about it becoming void. It’s still possible to adopt children in Germany and become a mother or father via adoption. Other laws specify the circumstances under which adoption can happen.
Then you confuse the idea of legality with the idea of enforceability. It’s not illegal to write a contract that’s not legally enforceable.
In Germany for example prostitution is legal but contracts around the delivery of sexual services aren’t legally binding.
A lack of the government using it’s monopoly on violence to enforce contracts that promise the delievery of sexual services.
When discussing a topic like this on LW, I would encourage you to be clear about the terms you use and not mash different issues like adoption markets and markets for surrogate motherhood together without distinguishing the issues.
When people marry they that they promise to love each other forever. That’s a promise that’s not legally-enforceable, but that doesn’t make it fraud to make that promise. The government is not enforceing those promises of marries of issues of the sanctity of personal relations that are quite similar to the issues surrounding adoption.
It’s quite simple to do business this way. The prostition market isn’t substantially harmed by the fact that there’s no enforceability.
When it comes to adoption, if you pay people after the adoption goes through instead of paying them in advance you can still have a functioning market for babies that are up for adoption. It’s enough that you can write a contract that makes the payment binding when services have been delivered. You don’t need the ability to make the delievery of the services enforceable when there’s payment to have that market.
But a market for adoption is not a market for surrogate motherhood because in surrogate motherhood the mother develops an emotional attachment for a particular child well before the actual event of the adoption happens.
There’s a very real question of intent and timing baked into this discussion, which we should bring forth. Entering into a contract that you don’t believe is enforceable and you don’t intend to honor, but which you tell your counterparty that you think it’s valid, is fraud. Entering into a contract that you intend to honor, and you accept the contractual penalties even if unenforced is best-behavior. The middle grounds of “found out later that I don’t accept the effects of my agreement, and it turns out to be unenforceable” is in question—my intuition is it’s blameworthy, but there’s room for debate.
The more interesting part of this is the availability of unenforceable contracts. Where surrogacy is not enforced, it doesn’t happen nearly as often. Some may find this good (fewer people in the world!) and some may not (we need more people!), but it’s clear that Posner’s correct that disallowing it removes the supply rather than protecting the suppliers.
(it’s true that people find other ways to do it, like going to another country or lending money rather than direct payments, and then forgiving the debt as part of adoption proceedings. that’s not relevant to the question of whether to prevent some kinds of voluntary and optional contract).
First of all, I think you don’t concretely understand what (standard, as you said) surrogacy is. Or perhaps you didn’t express it correctly or I did not understand what you expressed. Surrogacy is where a woman becomes pregnant with the intention of handing over the child to someone else after giving birth. Generally, she carries the baby for a couple or parent who cannot or do not conceive a child themselves—they are known as “intended parents”. It is genetically her child—but the sperm she receives is possibly from the father. What do you mean by ‘not hers genetically’? It is hers genetically. How can you carry a child without being yours genetically, as a female?
Second of all, the German Article which I suggested HAS to do with the issue of surrogacy contracts because it establishes who the mother of a child is in a legal sense—and the mother of a child in a legal sense is the one who gives birth to it. Thus, the ‘intended’ mother cannot claim that she is the legal mother of the child since the law says that the mother of the child is only the female who gave birth to it. The courts interpret this piece of legislation extensively and consider it as an argument which proves that a surrogacy contract is void. It goes like this: since a mother can be only the one who gives birth to a child, then a surrogacy contract cannot be established because there is no such thing as an ‘intended’ mother—only a biological one. The rule was introduced in 1998 precisely because it wanted to strictly maintain that surrogacy contracts are illegal.
Third of all, I don’t think I confuse the idea of legality with the idea of enforceability. In the Netherlands, such a contract is legal but cannot be enforced. In Germany it is banned; illegal. Same case applies to France. Prostitution is a different matter; and i am not familiar with it in terms of contract law. But, taking into account surrogacy contracts, in Germany such a contract is strictly illegal.
I don’t think I “mashed” anything. Perhaps give my article a second read and a little bit more attention and research? Adoption was given as an extra argument, but not as a fundamental one, expressed by Posner.
How can you carry a child without being yours genetically, as a female?
The genetic orgin of the child comes from the woman that produced the fertilized egg. If you put that egg into another woman, you have a child where the genetic mother and the birth mother aren’t the same person.
The German law you reference is about specifying that the “mother” means “birth mother” and not “genetic mother” for the purposes of German law. It doesn’t have anything to do with adoption or the contracts you can make about adoption. Germany does have law that handles how a nonbirth mother can becoming a legal mother for a child through adoption.
If you think that such a contract is illegal in Germany, that law you referenced certainly doesn’t make it illegal. Do you think there’s another law that makes it illegal?
What you’re talking about is NOT standard surrogacy. It’s the exception type.
Check the case-law if you’re so sure that Article which I reffered to has nothing to do with what I argued. You need to see the purpose behind a rule in order to understand it—not to merely read it. (That’s quite a basic thing). That piece of legislation has the precise purpose I already told you about.
I talked about the German piece of legislation—OF COURSE. It has to do with that. That’s basic legal knowledge in German law. This is the last comment I am sending in respect of this issue. Maybe do your research? How many legal cases from Germany have you read, about this issue, honestly?
I mean, this is not a discussion platform about legal issues, I don’t think you should expect really anyone to have read any significant number of cases before reading this article.
The citation you provided seems (in isolation) not to make the point I expected it to make, given the context it was placed, which Christian accurately pointed out. The citation seems related, but I was definitely confused when I looked at the actual section of the law that you linked.
You provide some additional background here, which I think helps some, but even after reading the discussion and the article, I don’t think I have a model of the world that outputs “german law bans surrogate motherhood” for any reason other than “Vizi Andrei said it”. And while it’s obviously unavoidable that a reader will have to put some trust in the author’s word, I think it’s a good target to limit that as much as possible, and in particular to avoid placing citations in a way that suggests a more self-contained explanation than the actual text of the cited reference provides.
That’s a good point. I think I should have given a more elaborate basis for my argument. And I figured (quite late) that this article is not necessarily in harmony with the LW community perspective, as it involves a legal aspect rather than something related to rationality. So, after pondering for a while, I admit, my approach was flawed, and from now on I won’t write anything that fundamentally involves a difficult legal problem, but something related to rationality per se.
Anyhow, what I don’t personally get is why would one disagree with an argument which he does not understand. There’s one thing to state: “hei, can you provide more explanation for your argument” and there’s another to state: “I am not familiar with this topic, I am not willing to do any research, but you are wrong.” if people strongly disagree with your argument, it makes you expect that they are familiar with the topic. So whilst you are right in saying that I was wrong to expect people to be familiar with this topic, I think one who is not familiar may either ask questions, do some research or simply ignore the discussion.
While I was reading your post originally, I assumed surrogacy referred to another woman receiving an implantation of a fertilized egg from the intended parents, and then carrying that to term.
If that would be true it would be unlikley for you to reference a German law that only matters for gestational surrogacy and doesn’t have anything to do with adoption.
I’m not sure that your definition of what a Surrogate Motherhood contract happens to be mean what it means in the literature. I think the standard meaning of the term is about a woman being pregnent with a child that not hers genetically but that has another genetic mother.
The German paragraph you referenced has nothing to do with adoption or contracts about it becoming void. It’s still possible to adopt children in Germany and become a mother or father via adoption. Other laws specify the circumstances under which adoption can happen.
Then you confuse the idea of legality with the idea of enforceability. It’s not illegal to write a contract that’s not legally enforceable.
In Germany for example prostitution is legal but contracts around the delivery of sexual services aren’t legally binding.
A lack of the government using it’s monopoly on violence to enforce contracts that promise the delievery of sexual services.
When discussing a topic like this on LW, I would encourage you to be clear about the terms you use and not mash different issues like adoption markets and markets for surrogate motherhood together without distinguishing the issues.
Writing a contract that you don’t plan to honor is fraud, isn’t it?
When people marry they that they promise to love each other forever. That’s a promise that’s not legally-enforceable, but that doesn’t make it fraud to make that promise. The government is not enforceing those promises of marries of issues of the sanctity of personal relations that are quite similar to the issues surrounding adoption.
It’s quite simple to do business this way. The prostition market isn’t substantially harmed by the fact that there’s no enforceability.
When it comes to adoption, if you pay people after the adoption goes through instead of paying them in advance you can still have a functioning market for babies that are up for adoption. It’s enough that you can write a contract that makes the payment binding when services have been delivered. You don’t need the ability to make the delievery of the services enforceable when there’s payment to have that market.
But a market for adoption is not a market for surrogate motherhood because in surrogate motherhood the mother develops an emotional attachment for a particular child well before the actual event of the adoption happens.
There’s a very real question of intent and timing baked into this discussion, which we should bring forth. Entering into a contract that you don’t believe is enforceable and you don’t intend to honor, but which you tell your counterparty that you think it’s valid, is fraud. Entering into a contract that you intend to honor, and you accept the contractual penalties even if unenforced is best-behavior. The middle grounds of “found out later that I don’t accept the effects of my agreement, and it turns out to be unenforceable” is in question—my intuition is it’s blameworthy, but there’s room for debate.
The more interesting part of this is the availability of unenforceable contracts. Where surrogacy is not enforced, it doesn’t happen nearly as often. Some may find this good (fewer people in the world!) and some may not (we need more people!), but it’s clear that Posner’s correct that disallowing it removes the supply rather than protecting the suppliers.
(it’s true that people find other ways to do it, like going to another country or lending money rather than direct payments, and then forgiving the debt as part of adoption proceedings. that’s not relevant to the question of whether to prevent some kinds of voluntary and optional contract).
First of all, I think you don’t concretely understand what (standard, as you said) surrogacy is. Or perhaps you didn’t express it correctly or I did not understand what you expressed. Surrogacy is where a woman becomes pregnant with the intention of handing over the child to someone else after giving birth. Generally, she carries the baby for a couple or parent who cannot or do not conceive a child themselves—they are known as “intended parents”. It is genetically her child—but the sperm she receives is possibly from the father. What do you mean by ‘not hers genetically’? It is hers genetically. How can you carry a child without being yours genetically, as a female?
Second of all, the German Article which I suggested HAS to do with the issue of surrogacy contracts because it establishes who the mother of a child is in a legal sense—and the mother of a child in a legal sense is the one who gives birth to it. Thus, the ‘intended’ mother cannot claim that she is the legal mother of the child since the law says that the mother of the child is only the female who gave birth to it. The courts interpret this piece of legislation extensively and consider it as an argument which proves that a surrogacy contract is void. It goes like this: since a mother can be only the one who gives birth to a child, then a surrogacy contract cannot be established because there is no such thing as an ‘intended’ mother—only a biological one. The rule was introduced in 1998 precisely because it wanted to strictly maintain that surrogacy contracts are illegal.
Third of all, I don’t think I confuse the idea of legality with the idea of enforceability. In the Netherlands, such a contract is legal but cannot be enforced. In Germany it is banned; illegal. Same case applies to France. Prostitution is a different matter; and i am not familiar with it in terms of contract law. But, taking into account surrogacy contracts, in Germany such a contract is strictly illegal.
I don’t think I “mashed” anything. Perhaps give my article a second read and a little bit more attention and research? Adoption was given as an extra argument, but not as a fundamental one, expressed by Posner.
Hope this clarifies everything.
The genetic orgin of the child comes from the woman that produced the fertilized egg. If you put that egg into another woman, you have a child where the genetic mother and the birth mother aren’t the same person.
The German law you reference is about specifying that the “mother” means “birth mother” and not “genetic mother” for the purposes of German law. It doesn’t have anything to do with adoption or the contracts you can make about adoption. Germany does have law that handles how a nonbirth mother can becoming a legal mother for a child through adoption.
If you think that such a contract is illegal in Germany, that law you referenced certainly doesn’t make it illegal. Do you think there’s another law that makes it illegal?
What you’re talking about is NOT standard surrogacy. It’s the exception type.
Check the case-law if you’re so sure that Article which I reffered to has nothing to do with what I argued. You need to see the purpose behind a rule in order to understand it—not to merely read it. (That’s quite a basic thing). That piece of legislation has the precise purpose I already told you about.
I said that the German law you are referenced has nothing to do with adoption. I didn’t make the claim that the US court case doesn’t.
I talked about the German piece of legislation—OF COURSE. It has to do with that. That’s basic legal knowledge in German law. This is the last comment I am sending in respect of this issue. Maybe do your research? How many legal cases from Germany have you read, about this issue, honestly?
I mean, this is not a discussion platform about legal issues, I don’t think you should expect really anyone to have read any significant number of cases before reading this article.
The citation you provided seems (in isolation) not to make the point I expected it to make, given the context it was placed, which Christian accurately pointed out. The citation seems related, but I was definitely confused when I looked at the actual section of the law that you linked.
You provide some additional background here, which I think helps some, but even after reading the discussion and the article, I don’t think I have a model of the world that outputs “german law bans surrogate motherhood” for any reason other than “Vizi Andrei said it”. And while it’s obviously unavoidable that a reader will have to put some trust in the author’s word, I think it’s a good target to limit that as much as possible, and in particular to avoid placing citations in a way that suggests a more self-contained explanation than the actual text of the cited reference provides.
That’s a good point. I think I should have given a more elaborate basis for my argument. And I figured (quite late) that this article is not necessarily in harmony with the LW community perspective, as it involves a legal aspect rather than something related to rationality. So, after pondering for a while, I admit, my approach was flawed, and from now on I won’t write anything that fundamentally involves a difficult legal problem, but something related to rationality per se.
Anyhow, what I don’t personally get is why would one disagree with an argument which he does not understand. There’s one thing to state: “hei, can you provide more explanation for your argument” and there’s another to state: “I am not familiar with this topic, I am not willing to do any research, but you are wrong.” if people strongly disagree with your argument, it makes you expect that they are familiar with the topic. So whilst you are right in saying that I was wrong to expect people to be familiar with this topic, I think one who is not familiar may either ask questions, do some research or simply ignore the discussion.
While I was reading your post originally, I assumed surrogacy referred to another woman receiving an implantation of a fertilized egg from the intended parents, and then carrying that to term.
So I just researched it, and apparently there are two types, which is why we’re confused here: “Traditional surrogacy” and “Gestational surrogacy”: https://en.wikipedia.org/wiki/Surrogacy#Traditional_surrogacy
Yes, it would help to define which type you refer to, as I find them very different ethically. (Or at least, emotionally, as a woman).
If one doesn’t explicitly say it’s Gestational, then it’s traditional. Indeed though, mentioning it may help.
If that would be true it would be unlikley for you to reference a German law that only matters for gestational surrogacy and doesn’t have anything to do with adoption.
Thank you for your comment. I will come back to you soon.